Perea v. Bush

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 26 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
GUY RALPH PEREA,
Petitioner-Appellant,
v. No. 04-8045
(D.C. No. 03-CV-65-J)
GEORGE W. BUSH, (D. Wyo.)
Respondent-Appellee.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.
State prisoner Guy Perea appeals pro se the district court’s denial of his
28 U.S.C. § 2254 petition. Perea’s original complaint, which the district court
construed as a habeas petition, appeared to assert that the President of the United
States committed treason for allegedly removing radio telegraphy without United
States Air Force permission. The district court dismissed his petition for failure
to pay the filing fee without providing Perea the opportunity to seek in forma
pauperis (IFP) status. Perea now appeals, seeking to proceed IFP. We grant his
motion to proceed IFP, and address his petition on the merits.
In order to appeal the denial of a 28 U.S.C. § 2254 petition, Perea must
secure a certificate of appealability (“COA”). A COA may issue only if the
applicant has made a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). Because the district court did not grant a COA, we
construe Perea’s filings and opening brief as a request for a COA, which we now
analyze.
Because the district court dismissed Perea’s petition on a procedural ground
prior to development of either the factual or legal basis for his underlying claims,
our assessment of the merits of his claims is necessarily limited. “When the
district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000); Adams v. Lemaster , 223
F.3d 1177, 1179 (10th Cir. 2000). In Slack , the Supreme Court emphasized that:
“Section 2253 mandates that both showings be made before the court of appeals
may entertain the appeal.” Slack , 529 U.S. at 485 (emphasis added).
In this case, we have taken the requisite “quick look” at the underlying
claims raised in Perea’s habeas petition and conclude that it fails facially to allege
the deprivation of a constitutional right. See Paredes v. Atherton , 224 F.3d 1160,
-2-
1161 (10th Cir. 2000). We DENY his request for a COA and DISMISS .
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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